Lt Col Manish Sehgal v. Mrs Meenu Sehgal

1. This is a father's appeal against an order of 5^ August 2013 by the Family Court granting custody of his two minor daughters to their mother - the respondent. The respondent/mother had earlier been granted interim custody by the same court for the Diwali vacations and the school winter holidays last year i.e. on 14^^ and 15^^ November, 2012 and also from 29^^ December, 2012 to 6^^^ January, Mat. App. (FC) No.29/2013 Page 1 of15 I 2013:DHC:7884-DB The mother had filed the I ^ 2013 respectively. The coujple had separated on 16^ August, 2012. ipplication for guardianship and interim custody of the minorchildren on 1^^ November, 2012.

2. Upon being permitted by th^ Court, the mother met the children Sana and Sarah (aged 7 and 9 years) during the Diwali festival in Lucknow, where they are studying i|i classes 4 and 6 respectively in City Montessori School. However for the winter vacations, she was not given their custody by the father. Pursuant to the proceedings ofnon compliance of the latter order, the Family Court directed the Commissioner ofPolice to cepute a person not below the rank ofACP / a lady officer to accompan children along with the res y the petitionerto Lucknow and bringthe iDondent to the Family Court. The father jared in Court and the application of the 18^^ May, 2013. Agamst this order both and the minor children app mother was disposed off on parents appealed to the High Court. The appeals weredisposed off on 29^ May, 2013 with a diredtion to the Trial Judge to consider afresh the statements of the partie^ before it for an interim arrangement not only for the summer vacations but also interim arrangements during the pendency of the proceedings before the Trial Judge. The High Mat. App. (FC) No.29/2013 Page 2 of15 r Court made it clear thafothe Family Court would not be affected by the opinion expressed by it for the fresh reconsideration while giving directions which the Trial Court may be required to give.

3. Both parties moved applications for modification of the order dated 18^ May, 2013. The application moved by the mother sought two reliefs: i) grant oftemporary custody ofthe minor girls for the ensuing summon vacations from to 25^ of June 2012 and ii) a decision afresh for their interim custody during the pendency of the petition. She claimed that she had been unduly deprived of the society of the children although she had taken care of them and that such deprivation had caused her immense mental agony and irreparable loss. She also highlighted the fact that the father had not handed over the custody of the children during the winter vacations despite clear Court orders in that regard. In response the father stated that the mother was only concerned about her personal care and career and that it was, in fact, he who had been taking care of the children since their birth as the mother had shown no such interest in their upbringing. He ftirther contended that the children were emotionally I attached to him and had categorically expressed their preference of Mat.App. (FC)No.29/2013 Page 3 of15 I not wanting to be with tbeii mother.

4. The Trial Court consider mother's allegations and e father, his alleged extra ma the wife contended) was c divorce proceedings, letters this regard, their phone cal address of both persons. ed the contention of the parties. The vidence was regarding alcoholism of the terial relationship with another lady, (who mtemporaneously going through her own between her and the present appellant in records, proximity of the Delhi - Kalkaji ( The niaterials relied on by the appellant further were letters adduced by him- in opposition to the application for custody, said to have been written by his daughters and by the informing the father that the children were because of the parents' personal life Abacus teacher - (the latter getting disturbed perhaps squabbles). The children's found reliable by the Trial letters relied upon by the father were not Court which reasoned that the children who were living with their father, would not write letters of such nature to him. The Family Court found the mother's contentionmore plausible and credible andthe circumstances more conducive with the mother for the custody of tl e children. The Trial Court had reasoned that the letters were written after filing of the custody petition and Mat. App. (FC) No.29/2013 Page 4 of15 f ) 1:2 indeed if the children were in the habit of writing such letters to their father - with whom they are living - then they must have written letters earlier and subsequent to the ones adduced by the father. However, for unexplained reasons, no other letters had been brought on record. Therefore, no reliance was placed on the said letters.

5. While granting custody to the mother the Trial Court was mindful of the law with respect to the grant of interim permanent custody of the minor children in particular of female minors. It referred to Gaurav Nagpal V. Sumedha Nagpal (2009) 1 SCC 42 and Nil Ratan. v. Abhijit Kundu Civil Appeal No.496/2008, which requires that issue of a custody of the minor being a complex question should be solved with a delicate human touch. That where a court deals with such a case, neither statutes nor strict rules of evidence or ofprocedure ought to be I I given privacy and that the paramount consideration in such cases | I should be the wellbeing and welfare ofthe minor. That in such cases | of selecting a guardian, the Court would be bound to give due weight to a child's ordinary comfort, health, education, emotional development and favourable surroundings. If the minor is old enough to state his/her independent preference, the Court must consider such Mat.App. (FC)No.29/2013 Page 5 of15 6. preference as well though what would be conducive the final decision would rest with Court as;o the welfare ofthe minor. During the course of the had been brought to the C sought to examine them learing before the Trial Court the children Durt since the counsel for the petitioner had n chamber but on that date the applicant gave up this request. However, since the children had come all the way from Lucknow, the Trial Court thought it fit to examiiie them. The observations in this re i;ard are relevant: 'However, since both the children were brought in the Court therefore, this Court decided to interact with the children in the chamber and he also stated that he conveyed this fact to the counsel for the respondent also. It seems thct since this fact was conveyed to the counselfor the respondent thatpetitioner will notpress for her prayer to examine the daughters in chambers therefore, respondent brought the daughters in the court but they were brought without being tutored. Seeking the plight and fear on the face of both the children we all three decided that will not say any such thing to any of me party and if the respondent will inquirefrom the children then they will stated that they were asked about their schoolfriends at Lucknow." "14. Last but not the least it may be mentioned that on 1L[7].2013 after counsel for the petitioner moved application for early hearing, I talked to both the children in the ch undersigned and talked to children amber which took place between the children hardly for 5 minutes. I and asked them as to how was their Mat. App. (FC) No.29/2013 Page 6 of15 / stay with their mother during the summer vacation. They stated that it was wonderful. They further told that they have come from Lucknow and in Lucknow their grandmother is not there as she has sujfered fracture ofher leg and she is in Delhi. Subsequently I asked a very small question to both children that "Ab kiske pass rehna hai, papa he pass or mummi ke pass?" Elder of the two kids kept silent but the younger one replied that "mujhe to mammi ke pass rehna hai". ^en this question was put to the elder one she also stated that "Mujhe bhi mammi ke pass rehna haiperye bat boli to bahut daantpadegi."

7. The court granted custody of the minor children to the mother after concluding that it would be in the interest and the welfare ofboth the children that she have their custody. Reliance was placed upon a case titled Ayesha Bhati v. Vijay R. Bhatia AIR 1988 Delhi 149 which had heldthat wishes expressed by minor arean important consideration.

8. The appellant's counsel, Senior Advocate Mr. Sudhir Nandrajog, argued that the father was threatened by the respondent/mother that she would have him put behind the bars; that she shied away from meeting the children in Lucknow between 11^ and 15^^ November, 2012; that the non-handing over the custody of the minor daughters was on account oftheir ill-health and not for any other reason; that the allusion to an extra marital relationship of the father was a further Mat. App. (FC) No.29/2013 Page 7of15 attempt to prejudice the Court and that indeed the Court didtake this into account as a factor for fact there was no truth themselves shared with the to their father that they did granting custody to the mother, whereas in n the said allegation; that the children High Court and later through their letters not wish to either meet or stay with their mother who is otherwise preoccupied with her professional career and personal care only. It was argued that the letters ofthe children which are on record and their iiteraction with this Court - earlier on 24.5.2013 and during the course ofthis appeal have revealed that they do not wish to stay with their mother but with the appellant/father; that the father isproviding them all the care, love and affection which ought to be given to them aid he is best suited in the circumstances for their nurturing as the (Children will always be in a protected environment. In this context provided to senior officers it was submitted that the accommodation af the Army is most suitable for their healthy and proper upbringing; and that the Trial Court should not have interviewed the children in July 2013 when they had already expressed their desire to sUy with the father to the High Court. heir school ortransfer orhandling over Counsel urged that changing Mat. App. (FC)No.29/20I[3] Page 8 of15 >1 their custody to the mother at this stage would seriously upset them psychologically and socially and such upheaval would affect their personal growth; handing them over to the mother at this juncture would severely upset their academic session too which has reached the stage of their academic examinations and finally, that the impugned order was not in the welfare ofthe children which being the paramount interest was ignored by the trial court.

9. Mr. Akhil Sibal, learned counsel for the mother, contended that the statement of the children relied upon by the Trial Court was the one after they had spent some holidays with the mother and that the statement was the one nearest in time to the custody order, therefore it ojLight to have been and was correctly taken into consideration. He contended that besides there was no impediment or bar upon the Court to interact with the children to ascertain their preference.

10. Having heard the learned counsel and considered the facts ofthe case, this Court is of the opinion that the Family Court has considered all aspects ofthe case and addresseditselfprimarily as to the interest and welfare of the children before concluding and ordering that their custody should be given to their mother. This Court is also conscious Mat. App. (FC) No.29/2013 Page9of15 }k that the girls aged about 7 to 9 years would need due care and attention oftheir mother more than anybody else. At this tender phase in their life, it is a mother who would be more aware and aliveto their emotional and physical nee the Army ~ being on call o delicate requirements. ds and the father being a senior officer in f duty - may not be able to attend to these

11. The learned counsel for tie appellant relied upon three decisions R.VSrinath Prasad v. Nandamuri Jayakrishna & Ors. AIR 2001 SC 1056, Athar Hussain v. SyedSiraj Ahmed & Ors. AIR 2010 SC 1417 and Sheila B.Das v. P.R. Sugasree AIR 2006 SC 1343. In the first case, the Supreme Court held that: "custody of minor children is sensitive. It is also a matter involving ofsentimentalattachment. Such a matter is to be approached and tackled carefully. A balance has to be struck between attachment andsentiments of the parties towards ( fare ofthe minors, which hadparamount ither two cases also are on the same lines but focusing primarily on the welfare ofthe children irrespective of the allegations that the parties may have made against each other. the minor children and welj interest. " The subsequent o Mat. App. (FC) No.29/2013 Page 10 of15 ^1

12. During the course of the hearing the learned counsel for the respondent mother had offered - upon instructions from her, who is present in the court — that keeping in viewthat the children are in the middle of their academic session and would have their final exams commencing shortly - and she being a teacher at Amity International School and hence alive to this fact would be ready and willing to shift to Lucknow simply to be with and take care and custody of her daughters so as not to disturb their academic session provided however that she would be free to move the children to Delhi to have them admitted in Army Public School or Amity International School or such other prestigious schools asmay be suitable or convenient and appropriate for their fiirther studies after their final examinations are over. Although in terms of the impugned order which grants immediate interim custody to the mother and for her to shift the children to Delhi even during mid-session academic session, the willingness of the mother to move to Lucknow clearly shows her bonafides and her concern for the welfare ofthe children. This Courts notices thatthe mother has expressed herwillingness to relocate from Delhi to Lucknow albeit temporarily even though she has a regular Mat. App. (FC) No.29/2013 Page 11 of15 13. 1a^ job as a school teacher in for the overall benefit and Amity International School, Noida merely psychological health of her daughters and in their academic interest too. This Court has perused the letters purportedly written by the children and finds that the language used and content of both near identical and the end i.e.: "DearPapaj I want to stay with you." Indeed the expressions used and the flow ofthought are such as would not be ordinarily attributable to a 9 year old child and certainly not to a 7year old. Likewise the identical allusion by both of them to their mother as "that lady" appears strained and contrived, ifnot downright unnatural. They both have the appearance of being dictated by somebody else and for that reason, facially. especially in the beginning cannot be relied upon. Inde atmosphere for the childrer ed, it bodes an unhealthy surrounding and if they are indeed dictated to write such unfortunate letters about th(5ir own mother to their father with whom they reside.

14. Counsel forthe appellant had Court Judge was biased and during the hearing urged that the Family showed itduring the hearing especially in the manner of conducting the interview with the child. No Mat. App. (FC) No.29/2013 Page 12 of15 contemporaneous affidavit or application alleging bias appears to have been moved to enable the Judge to deal with such allegations. Furthermore, the grounds urged are general in nature. Appellate Courts cannot be expected to render findings of bias on the basis of such tenuous pleadings and materials. Again, the argument that this Court should disregard the observations and impressions of the Trial Court since on two separate occasions, the Judges of this Court recorded contrary observations is unpersuasive. There orders were not final; but made tentatively and cannot override the obligation of their Court to consider the correctness or soundness of the impugned order, and the overall welfare and well being ofthe two children.

15. For the above reasons, we are of the opinion that the impugned judgment and order does not suffer from any infirmity and does not call for any interference. However, keeping the larger interest and care of the minor child and especially the fact that the removing them from the school namely City Montessori School, Lucknow at this stage could be upsetting to them, the Court hereby directs as follows:

(i) The respondent-wife, in line with the statement made on her behalf, shall move to Lucknow in a week's time and the custody of Mat. App. (FC) No.29/2013 Page 13 of15 I the children shall be handed over to her on or before 30 December

2013.